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Can Baltimore's police reform deal survive a Trump Justice Department?

Baltimore police reform deal will "live on" under Trump, Lynch pledges

U.S. Attorney General Loretta Lynch described the sweeping Baltimore police reform document she signed Thursday as a "legally binding" deal that will survive a Trump administration — even, perhaps, over the objections of the new president and his Justice Department.

Officials worked long hours in recent weeks to finish the consent decree before President-elect Donald J. Trump takes office next week.

"This agreement will live on," Lynch told reporters at City Hall. "It is court-enforceable. There is an independent monitor and it will live on."

Others aren't so sure.

Sen. Jeff Sessions, the Alabama Republican nominated by Trump to replace Lynch, expressed skepticism this week about the use of consent decrees to address civil rights abuses in policing.

A federal judge will oversee the implementation of the agreement. But legal analysts say the Trump administration, if it chose, could employ any of several tactics to undermine it: advocating for a monitor who opposed reforms, declining to seek the decree's enforcement, or expressing a starkly different philosophy of criminal justice in court.

"The change of administration is everything to the relevance of the consent decree," said Baltimore lawyer Steven H. Levin, a former federal prosecutor.

"We know based on their statements that President-elect Trump and his attorney general nominee are skeptical about consent decrees, and they are not as likely to enforce them as a Clinton administration would have been," Levin said. "From a practical perspective, it's not at all clear why taxpayers should be spending money on a monitor who would send reports to a president who would throw their report in a drawer."

City and federal officials have worked since August on the agreement to reform a Police Department that Justice Department investigators repeatedly violated the constitutional rights of Baltimore's residents, particularly African-Americans.

After Trump's election victory, Mayor Catherine Pugh, a Democrat, ordered the negotiations to be "accelerated," she said. Her staff worked late nights to finish the deal.

Activists and legal analysts say it was important for Lynch and Pugh to get the deal enter into the federal court system before Trump took office. Although Lynch is leaving the Justice Department, Pugh said, many of her key staffers would likely stay on.

Jonathan Smith, who negotiated consent decrees when he was chief of special litigation in the Civil Rights Division of the Justice Department from 2010 to 2015, said the agreement limits the degree to which the new administration could back out.

"There is now a contract between the parties. They have agreed to this," he said. "There is very limited leeway that the Sessions Justice Department would have to make changes."

Either party can ask for changes to the agreement, or they can file a joint motion asking for changes together.

But there are strict rules for how such requests are considered, Smith said, and judges typically grant them only if they are needed to address a change in the circumstances surrounding the case, and adhere to the original intent of the lawsuit.

"It's not modification saying, 'We don't want to do this anymore,'" Smith said.

Trump, who called himself "the law-and-order candidate" during the campaign, has expressed a sharply different view of what constitutes effective policing than President Barack Obama. He has expressed support for the "stop-and-frisk" policing tactics opposed by Obama and condemned by Baltimore leaders.

Sessions told the Senate Judiciary Committee this week that he was skeptical about consent decrees, a tool the Obama administration has used in several cities.

"These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness, and we need to be careful before we do that," Sessions said at his confirmation hearing.

But Sessions was less clear on whether he would seek to change consent decrees already in place.

"Those decrees remain in force until and if they're changed," he said, "and they would be enforced."

Through a spokesman, Sessions declined to comment for this article.

University of Maryland law professor Doug Colbert said he believed the consent decree will survive now that it's in the hands of a judge. But he said the Trump administration could weaken its effectiveness by being less aggressive in making sure it is enforced.

"I feel comforted that it was filed today," he said, "With a Loretta Lynch you could be assured of a more vigilant, pro-active stance in making sure the police are rectifying past practices. With a Trump U.S. attorney general, you would likely find the advocacy to be much different. ... There will be a shifting in the zealousness of the advocacy."

Gov. Larry Hogan, a Republican, offered some support for helping the city find money to pay for reforms required under the agreement. He declined to discuss details of the document because he had not read it.

The governor said he planned to meet with Pugh to discuss the funding needed to implement it.

"No one has put any dollar figure on it at this point," he said. "But we are going to be sitting down with the mayor shortly and we're going to be trying to provide what assistance we can."

Chuck Wexler, director of the Police Executive Research Forum, said the drive to finish the deal before President Barack Obama and Lynch leave office shows the city is serious about reform.

"It seems as though Baltimore, unlike what I've seen from other cities, really embraced what the Justice Department is trying to do," he said. "The training alone is extremely broad and deep. Baltimore will be a better police department for it."

But Wexler said the agency will be tested trying to institute sweeping policy changes while fighting high levels of violent crime. Baltimore suffered from more than 300 homicides in 2016 for the second year in a row.

"It's challenging because when you put all these people in training, you're taking them off the street," he said.

Police Commissioner Kevin Davis said the consent decree will be good for rank-and-file officers. It will require enhanced training, technology and equipment, and he said better relationships with the community will lead to solving more murders and shootings, driving down violent crime.

"The cops on the street will absolutely benefit from this consent decree," Davis said.

He expressed confidence that the legal agreement will guide the Police Department in the right direction — no matter who is president.

"The consent decree gives us a road map forward. It's no longer a singular person who is pushing reform," Davis said. "This process will still stand like a mountain."

Baltimore Sun reporters Kevin Rector, Pamela Wood and Justin Fenton contributed to this article.

lbroadwater@baltsun.com

Twitter.com/lukebroadwater

What happened, what's next

•The Justice Department and the city of Baltimore filed a consent decree in federal court Thursday.

•Officials have asked the judge overseeing the case to hold a public hearing, and then to approve the agreement.

•The city and government will solicit bids from firms and organizations interested in monitoring the consent decree. The sides will attempt to whittle down a list of finalists and make a pick; if they can't agree, the judge will select the monitor.

•The agreement calls for a three-year term, with annual payments for the monitor capped at $1.47 million. In other cities, monitoring teams have consisted of attorneys, former police leaders and others with technical expertise.

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